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The Human Right to Citizenship
Situating the Right to Citizenship within International and Regional Human Rights Law
Series: - International Refugee Law Series, Volume: 21
Author:
The open access publication of this book has been published with the support of the Swiss National Science Foundation.
This book offers a comprehensive analysis of the right to citizenship in international and regional human rights law. It critically reflects on the limitations of state sovereignty in nationality matters and situates the right to citizenship within the existing human rights framework. It identifies the scope and content of the right to citizenship by looking not only at statelessness, deprivation of citizenship or dual citizenship, but more broadly at acquisition, loss and enjoyment of citizenship in a migration context. Exploring the intersection of international migration, human rights law and belonging, the book provides a timely argument for recognizing a right to the citizenship of a specific state on the basis of one’s effective connections to that state according to the principle of jus nexi.
This book offers a comprehensive analysis of the right to citizenship in international and regional human rights law. It critically reflects on the limitations of state sovereignty in nationality matters and situates the right to citizenship within the existing human rights framework. It identifies the scope and content of the right to citizenship by looking not only at statelessness, deprivation of citizenship or dual citizenship, but more broadly at acquisition, loss and enjoyment of citizenship in a migration context. Exploring the intersection of international migration, human rights law and belonging, the book provides a timely argument for recognizing a right to the citizenship of a specific state on the basis of one’s effective connections to that state according to the principle of jus nexi.
Barbara von Rütte, Dr.iur. (2020), University of Bern, LL.M., Leiden, is currently a postdoc at the University of Basel. Her work focuses on citizenship, nationality, statelessness and belonging, as well as international human rights and Swiss migration law.
"What makes this book stand out is the range of interrelated topics that it covers, from statelessness, deprivation of citizenship, and multiple citizenship, to more general themes on the acquisition, enjoyment, and loss of citizenship in the migration context. Ultimately, the book is a key contribution to the field of citizenship studies in that it provides readers with a fresh understanding of the right of individuals to acquire citizenship. It also shows us how to navigate the protection gaps that leave individuals at risk of violations of their right to citizenship, through the identification of those rights and obligations that can be derived from the right to citizenship as enshrined in international legal standards."
Abdullah Omar Yassan, GLOBALCIT, 2023.
"In summary, von Rütte’s book not only contributes significantly to the scholarship on citizenship but also invites readers to contemplate the profound implications of this right in our contemporary world. Her meticulous research and persuasive arguments make this book a valuable addition to the discourse surrounding human rights and citizenship for academics and practitioners alike."
Monika Plozza, European Journal of Migration and Law, 25 (3), pp. 380-383.
"Citizenship (or nationality) remains a slippery concept in our times and this study provides ways of strengthening the right to a nationality and realising effective nationality, especially for persons with a clear nexus with a state/states and yet facing the risk of arbitrary deprivation of nationality."
A. Yadav, The Statelessness & Citizenship Review, (2023) 5(2), 245-251.
Abdullah Omar Yassan, GLOBALCIT, 2023.
"In summary, von Rütte’s book not only contributes significantly to the scholarship on citizenship but also invites readers to contemplate the profound implications of this right in our contemporary world. Her meticulous research and persuasive arguments make this book a valuable addition to the discourse surrounding human rights and citizenship for academics and practitioners alike."
Monika Plozza, European Journal of Migration and Law, 25 (3), pp. 380-383.
"Citizenship (or nationality) remains a slippery concept in our times and this study provides ways of strengthening the right to a nationality and realising effective nationality, especially for persons with a clear nexus with a state/states and yet facing the risk of arbitrary deprivation of nationality."
A. Yadav, The Statelessness & Citizenship Review, (2023) 5(2), 245-251.
Acknowledgments
List of Tables
List of Abbreviations
1 Introduction
i
Citizenship and International Migration – Setting the Problem
ii
Objective, Scope and Delimitation
iii
Approach and Outlook
2 Citizenship and Nationality Terms, Concepts and Rights
i
Citizenship or Nationality? A Note on Terminology
ii
The Concept of Citizenship
1 Historical Traces of the Concept of Citizenship
2 Theoretical Conceptualizations of Citizenship
3 Citizenship as a Legal Status
3.1 The Concept of Citizenship in International Law
3.2 Acquisition and Loss of Citizenship
3.3 Functions of Citizenship
iii
Citizenship as a Human Right
1 Citizenship as Access to (Human) Rights
2 Citizenship as a Moral Human Right
2.1 Hannah Arendt’s Right to Have Rights
2.2 Seyla Benhabib’s Cosmopolitan Right to Membership
2.3 Ruth Rubio-Marín’s Jus Domicilii
2.4 Joseph Caren’s Theory of Social Membership
2.5 Ayelet Shachar’s Jus Nexi
2.6 David Owen’s Right to a Nationality
3 Citizenship as a Legal Human Right
3 Domaine Réservé? Statehood, Sovereignty and Nationality
i
Statehood and Sovereignty in International Law
1 Elements of Statehood
2 Statehood and Sovereignty
3 State Sovereignty and the Doctrine of Domaine Réservé
ii
The Traditional Perception of Nationality as a Domaine Réservé and its Development
iii
A Historical Perspective on the Regulation of Nationality in International Law
1 Early Multilateral Regulation: Avoiding Conflicts
2 Internationalization and Specialization: The 1930 Hague Convention
3 The After-War Period: The Rise of Individual Rights
4 The Parallel Development: The Indirect Regulation of Nationality
iv
Conclusion: Growing International Support
4 Beyond Sovereignty The Right to Nationality in International Law
i
Article 15 Universal Declaration of Human Rights
1 The Drafting History of Article 15
udhr
2 The Scope and Content of Article 15
udhr
3 The Customary Nature of Article 15
udhr
ii
The Right to Nationality in International Law
1 The Right to Nationality at Universal Level
1.1 The UN Core Human Rights Treaties
1.2 The Statelessness Conventions and the Refugee Convention
1.3 Soft Law Instruments at Universal Level
2 The Right to Nationality at Regional Level
2.1 The Americas
2.2 Europe
2.3 Africa
2.4 Middle East and North Africa
2.5 Asia and Pacific
2.6 Interim Conclusion
iii
The Right to Nationality as Customary International Law?
iv
Conclusion: The Body of International Human Rights Law
5 Defining the Right to Nationality Rights and Obligations
i
Qualifying the Right to Nationality
ii
The Scope of the Right to Nationality
1 Personal Scope of Application
1.1 Everyone
1.2 Instruments with a Limited Personal Scope
1.3 Legal Persons?
2 Substantive Scope of Application
2.1 Nationality
2.2 Acquisition, Change and Loss of Nationality
3 Territorial Scope of Application
4 Temporal Scope of Application
iii
Rights and Obligations Derived from the Right to Nationality
1 Negative and Positive Obligations
2 Transversal Obligations
2.1 Prohibition of Discrimination
2.2 The Prohibition of Arbitrariness and the Question of Proportionality
2.3 The Duty to Prevent and Reduce Statelessness
3 Obligations Regarding the Acquisition of Nationality
3.1 Right of the Child to Acquire a Nationality
3.2 Acquisition of Nationality by Stateless Persons and Refugees
3.3 Acquisition in Situations of State Succession
3.4 Prohibition of Extraterritorial Naturalizations
3.5 Prohibition of Forced Naturalization
3.6 Right to Naturalization
4 Obligations Regarding the Effective Enjoyment of Nationality
5 Obligations Regarding Change of Nationality
5.1 The Right to Change One’s Nationality
5.2 The Right to Renounce One’s Nationality
5.3 A Right to Dual or Multiple Nationality?
6 Obligations Regarding Involuntary Loss of Nationality
6.1 The Prohibition of Arbitrary Deprivation of Nationality
6.2 Prohibition of Deprivation of Nationality of Children
6.3 Prohibition of Mass Deprivation of Nationality
7 Obligations Regarding the Procedure
7.1 Access to the Procedure
7.2 Due Process
7.3 Right to Review
iv
Lawful Interference with the Right to Nationality?
1 Legality of Interference
2 Legitimacy of Interference
3 Balancing of the Interests
v
Enforceability and Implementation of the Right to Nationality
vi
Conclusion: Identifiable and Predictable Rights and Obligations
6 An Individual Right Realizing the Right to Citizenship
i
The Need to Strengthen the Right to Citizenship
1 The Limitations of Birthright-Based Modes of Citizenship Acquisition
2 The Claim for Political Participation and Representation
3 The Exclusionary Effects of Citizenship
4 The Individual Rights’ Dimension
ii
Jus Nexi – a Genuine-Connection Principle for Citizenship Acquisition
1 Theoretical Foundations of the Concept of Jus Nexi
2 From ‘Private Life’ and ‘One’s Own Country’ to Jus Nexi
2.1 The Right to Private Life and the Concept of Social Identity
2.2 The Right to Enter One’s Own Country
3 Connecting Factors for a Jus Nexi
3.1 Territorial Ties
3.2 Familial Ties
3.3 Social, Professional, Cultural or Political Ties
4 A Dynamic and Non-exclusive Concept
iii
Linking Jus Nexi and the Right to Citizenship
iv
The Implications of a Jus Nexi-Based Right to Citizenship
1 Scope of a Jus Nexi-Based Right to Citizenship
2 Content of a Jus Nexi-Based Right to Citizenship
2.1 The Right to Acquire Citizenship at Birth
2.2 The Right to the Citizenship of a Specific State
2.3 The Right to Dual and Multiple Citizenship
2.4 Limitations upon Involuntary Loss of Citizenship
3 Legitimate Interferences — Balancing a Jus Nexi-Based Right to Citizenship
v
Conclusion: Strengthening the Right to Citizenship
7 Conclusion
Bibliography
Table of Other Materials
Table of Cases
Index
List of Tables
List of Abbreviations
1 Introduction
2 Citizenship and Nationality Terms, Concepts and Rights
1 Historical Traces of the Concept of Citizenship
2 Theoretical Conceptualizations of Citizenship
3 Citizenship as a Legal Status
3.1 The Concept of Citizenship in International Law
3.2 Acquisition and Loss of Citizenship
3.3 Functions of Citizenship
1 Citizenship as Access to (Human) Rights
2 Citizenship as a Moral Human Right
2.1 Hannah Arendt’s Right to Have Rights
2.2 Seyla Benhabib’s Cosmopolitan Right to Membership
2.3 Ruth Rubio-Marín’s Jus Domicilii
2.4 Joseph Caren’s Theory of Social Membership
2.5 Ayelet Shachar’s Jus Nexi
2.6 David Owen’s Right to a Nationality
3 Citizenship as a Legal Human Right
3 Domaine Réservé? Statehood, Sovereignty and Nationality
1 Elements of Statehood
2 Statehood and Sovereignty
3 State Sovereignty and the Doctrine of Domaine Réservé
1 Early Multilateral Regulation: Avoiding Conflicts
2 Internationalization and Specialization: The 1930 Hague Convention
3 The After-War Period: The Rise of Individual Rights
4 The Parallel Development: The Indirect Regulation of Nationality
4 Beyond Sovereignty The Right to Nationality in International Law
1 The Drafting History of Article 15
2 The Scope and Content of Article 15
3 The Customary Nature of Article 15
1 The Right to Nationality at Universal Level
1.1 The UN Core Human Rights Treaties
1.2 The Statelessness Conventions and the Refugee Convention
1.3 Soft Law Instruments at Universal Level
2 The Right to Nationality at Regional Level
2.1 The Americas
2.2 Europe
2.3 Africa
2.4 Middle East and North Africa
2.5 Asia and Pacific
2.6 Interim Conclusion
5 Defining the Right to Nationality Rights and Obligations
1 Personal Scope of Application
1.1 Everyone
1.2 Instruments with a Limited Personal Scope
1.3 Legal Persons?
2 Substantive Scope of Application
2.1 Nationality
2.2 Acquisition, Change and Loss of Nationality
3 Territorial Scope of Application
4 Temporal Scope of Application
1 Negative and Positive Obligations
2 Transversal Obligations
2.1 Prohibition of Discrimination
2.2 The Prohibition of Arbitrariness and the Question of Proportionality
2.3 The Duty to Prevent and Reduce Statelessness
3 Obligations Regarding the Acquisition of Nationality
3.1 Right of the Child to Acquire a Nationality
3.2 Acquisition of Nationality by Stateless Persons and Refugees
3.3 Acquisition in Situations of State Succession
3.4 Prohibition of Extraterritorial Naturalizations
3.5 Prohibition of Forced Naturalization
3.6 Right to Naturalization
4 Obligations Regarding the Effective Enjoyment of Nationality
5 Obligations Regarding Change of Nationality
5.1 The Right to Change One’s Nationality
5.2 The Right to Renounce One’s Nationality
5.3 A Right to Dual or Multiple Nationality?
6 Obligations Regarding Involuntary Loss of Nationality
6.1 The Prohibition of Arbitrary Deprivation of Nationality
6.2 Prohibition of Deprivation of Nationality of Children
6.3 Prohibition of Mass Deprivation of Nationality
7 Obligations Regarding the Procedure
7.1 Access to the Procedure
7.2 Due Process
7.3 Right to Review
1 Legality of Interference
2 Legitimacy of Interference
3 Balancing of the Interests
6 An Individual Right Realizing the Right to Citizenship
1 The Limitations of Birthright-Based Modes of Citizenship Acquisition
2 The Claim for Political Participation and Representation
3 The Exclusionary Effects of Citizenship
4 The Individual Rights’ Dimension
1 Theoretical Foundations of the Concept of Jus Nexi
2 From ‘Private Life’ and ‘One’s Own Country’ to Jus Nexi
2.1 The Right to Private Life and the Concept of Social Identity
2.2 The Right to Enter One’s Own Country
3 Connecting Factors for a Jus Nexi
3.1 Territorial Ties
3.2 Familial Ties
3.3 Social, Professional, Cultural or Political Ties
4 A Dynamic and Non-exclusive Concept
1 Scope of a Jus Nexi-Based Right to Citizenship
2 Content of a Jus Nexi-Based Right to Citizenship
2.1 The Right to Acquire Citizenship at Birth
2.2 The Right to the Citizenship of a Specific State
2.3 The Right to Dual and Multiple Citizenship
2.4 Limitations upon Involuntary Loss of Citizenship
3 Legitimate Interferences — Balancing a Jus Nexi-Based Right to Citizenship
7 Conclusion
Bibliography
Table of Other Materials
Table of Cases
Index
This book appeals to legal academics and practitioners, political theorists, citizenship studies scholars interested in questions of citizenship, nationality, statelessness, migrant rights, belonging and international human rights law.